Prom the circuit court of Washington county.

TIon. A. McC. Kimbrough, Judge.

In June, 1905, the Merchants & Planters Bank of Green-ville, Mississippi, suspended payment, and made a general assignment of its business for the benefit of its creditors. The assignee named by the bank declined to serve and one Walker was appointed receiver of the bank by the chancery court, who, after qualifying, took charge of the bank’s business and assets. In November, 1905, the receiver being authorized by a decree of the chancery court to instiute legal proceedings for the collection of debts dfie the bank and to sue the stockholders for any dividends fraudulently or improperly paid them, instituted suit before a- justice of the peace against the appellee, Stone, filing a written statement of his cause of action, demanding judgment for $110 because of payments by the bank to Stone of two dividends, $60 and $50 respectively, on stock of the bank owned by him. The written statement of the cause of action or declaration recited the appointment and qualification of the receiver and the authority to sue conferred upon him by the chancery court, and alleged that the bank was insolvent in January, 1904, and January, 1905, when the respective dividends were paid to appellee and they had no't been earned. The written statement or declaration further alleged that the bank was indebted to numerous creditors whose debts existed when each of the two dividends were paid. The receiver, having lost his case before the justice of the peace, appealed to the circuit court, where the appellee, Stone, filed a demurrer to .the written statement of the cause of action or declaration claiming that the chancery court alone had jurisdiction of the case; that the receiver had no authority to institute the suit either at law or in equity; that the right of action existed only in the creditors of the bank who were creditors when the dividend payments were made. The circuit court sustained the demurrer, and dismissed the suit.

Walker resigned the receivership shortly after the rendition of the judgment of the circuit court, and Kretschmar, his successor, appealed to the supreme court.

The action by the receiver against the appellee was based upon Code 1892, § 852, which is as follows: “No part of the capital stock in any corporation shall be withdrawn or diverted from its purpose, nor a dividend declared, when the company is insolvent, or would be rendered insolvent by such withdrawal or the payment of such dividend; and the directors who assented to such withdrawal, or declared and paid such dividend, as well as the stockholders who received it, shall be jointly and severally liable to creditors whose debts then existed, to the extent of such withdrawal or dividend and interest.”

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